Ministers today insisted the ISIS 'Beatles' are not British any more amid a major row over the UK refusing to seek assurances they will not be executed in the US.
And Prime Minister Theresa May now says she backed the decision not to get death penalty assurances from Washington rather than merely being 'made aware' of it.
When asked if Mrs May approved of the Home Secretary Sajid Javid's decision, a Downing Street spokeswoman initially said she 'made aware' of it and the Government opposes the death penalty 'in all circumstances as a matter of principle'.
Number 10 later moved, saying Mrs May 'supports' the Home Secretary's handling of the case and hopes it will end with the two men remaining in prison for the rest of their lives.
'The ultimate aim for all of us in our discussions with the US is to make sure that these men face the rest of their lives in prison. That is also what the victims' families want,' said the Downing Street spokeswoman.
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Alexanda Kotey (pictured left) and Shafee El-Sheikh (pictured right) will be tried in US courts for their role in ISIS related activities
The spokesman added: 'In this instance, after careful and considered advice, the Government took the decision not to seek assurances. That was deemed by ministers to be appropriate.
'The Prime Minister was aware of these plans and supports the way that these are being handled.'
Security minister Ben Wallace sparked anger in the Commons by telling MPs that seeking the death penalty 'might get in the way' of justice.
He confirmed for the first time that the notorious jihadis captured in Syria have been stripped of citizenship.
He also dismissed concerns that the pair - Alexanda Kotey and Shafee El-Sheikh - are being illegally 'rendered' with approval from the UK authorities, saying they would have the benefit of the 'rule of law and due process' in America.
Mr Wallace told the Commons the 'reality' was that Britain did not have enough evidence to try the jihadis in this country, and there was a better chance of them being brought to justice in the US. 'We thought the best place was the United States,' he said.
The staunch defence of the government's position came as Home Secretary Sajid Javid faced a major backlash for telling the US he would not seek guarantees that the notorious jihadis will be spared execution.
Home Secretary Sajid Javid (pictured) faces a major backlash today after making clear Britain will not block the death penalty for the ISIS 'Beatles'
A leaked letter from Mr Javid to US Attorney General Jeff Sessions suggested Britain was ready to share intelligence so the pair - can be prosecuted under American laws.
The commitments, made last month according to the Daily Telegraph, drew accusations that Mr Javid had 'unilaterally' scrapped Britain's opposition to the death penalty and torture camp Guantanamo Bay.
Downing Street initially offered only lukewarm support for the move this morning - but this afternoon the PM's spokeswoman made clear she supported the stance.
'The ultimate aim for all of us is to make sure these men face the rest of their lives in prison. That is also what the victims' families want,' the spokeswoman said.
'In this instance after careful and considered advice the Government took the decision not to seek assurances, that was deemed by ministers to be appropriate.
'The Prime Minister was aware of these plans and supports the way these are being handled.'
Taliban prisoners in orange jumpsuits at Guantanamo Bay. The UK government has not formally opposed the ISIS pair being sent to the American detention centre
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The 'Beatles' pair – nicknamed after the British band because of their English accents - were involved in jihadist activity and became one of the Islamic State's most notorious terrorist silos.
They were led by the infamous Jihadi John – also English - whose real name was Mohammed Emwazi and was killed by a drone strike in Syria three years ago.
The terrorist group was behind the murder US journalists James Foley and Steven Sotloff, British aid workers David Haines and Alan Henning and aid worker and Iraq war veteran Peter Kassig.
Kotey and Shafee El-Sheikh were captured in January earlier this year as they attempted to flee, and are being held by the US-backed Syrian Defence Force.
In March they were spoke to journalists from where they are being detained in northern Syria and complained that the 'illegal' withdrawal of their UK citizenship put them at risk of 'rendition and torture'.
In his letter to Mr Sessions, dated June 22, Mr Javid wrote that the UK will not need 'assurances' that the pair will avoid the death penalty.
'I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought,' he wrote.
'I have instructed my officials to set out the terms of our assistance and to work with your officials to action the request. As you are aware, it is the long held position of the UK to seek death penalty assurances, and our decision in this case does not reflect a change in our policy on assistance in US death penalty cases generally, nor the UK Government's stance on the global abolition of the death penalty.'
'Intelligence' garnered by the Metropolitan police and the FBI show that security agencies have been investigating the Beatles for four years as part of a criminal inquiry involving 14 other countries.
Mr Javid wrote that 'kidnap and murder' were among the crimes being looked into and suggested that the UK's Crown Prosecution Service might not be able to deal with the pair effectively under current legislation.
He wrote: 'Ensuring foreign fighters face justice raises a real challenge for all our jurisdictions, however in this instance we believe that a successful federal prosecution in the US is more likely to be possible because of differences in your statute book and the restrictions on challenges to the route by which defendants appear in US courts.
'The US currently has additional charges for terrorism offences which are not available under UK criminal law, and those offences carry long sentences.'
Anger in the Commons
Answering an urgent question in the Commons, Mr Wallace denied Mr Javid had changed the UK's policy
'We're not talking about UK citizens,' he said.
He added: 'Who are we to deny that to those victims in the United States if the United Kingdom holds some of that evidence that may make it possible?'
Mr Wallace went on: 'We should not forget that the crimes that we're talking about involve the beheading and videoing of those beheading dozens of innocent people by one of the most abhorrent organisations walking this earth.'
He was quizzed from all sides of the chamber as he sought to explain the decision.
Isis beheading victim Alan Henning was kidnapped on Boxing Day 2013. The taxi driver from Manchester was captured before being beheaded by Jihadi John in October 2014
Labour former minister Yvette Cooper, who chairs the Commons home affairs committee, accused ministers of 'ripping up' the UK's principles.
She said: 'The whole House would agree that those who commit barbaric crimes should be locked away for the rest of their lives, but what the minister has said today is a contradiction of the longstanding abolition of the death penalty strategy.
'In this case the Home Secretary seems to have unilaterally ripped up those principles on a Friday afternoon in summer.'
David Haines (pictured) spent his career as an aid worker helping to protect innocent civilians in developing nations. He was the first victim of Jihadi John
Although the letter from Mr Javid does not mention Guantanamo Bay, another note from the same day obtained by the Telegraph was headed 'official sensitive' and read that UK ministers had shared information 'without seeking death penalty assurances'.
Under a section headed 'Guantanamo Bay', it read: 'If the US deems a federal prosecution not possible, they might seek transfer of Kotey and El-Sheikh to Guantanamo Bay (GTMO).
'Although HMG 'Her Majesty's Government' will not lobby the US to not send them to GTMO, we will maintain our long-standing position that GTMO should close.
'GTMO is seen by many as acting as a recruiting sergeant for extremists' intent on undermining Western values.'
The 'Beatles' pair – nicknamed after the British band because of their English accents - were involved in jihadist activity and became one of the Islamic State's most notorious terrorist silos.
They were led by the infamous Jihadi John – also English - whose real name was Mohammed Emwazi and was killed by a drone strike in Syria three years ago.
Among some of the most deplorable acts carried out by the hit gang were slaughtering journalists, aid workers and holding Westerners hostage.
They murdered two US journalists James Foley and Steven Sotloff, British aid workers David Haines and Alan Henning and aid worker and Iraq war veteran Peter Kassig.
In 2014 and 2015 they held and tortured 20 hostages.
The Beatles pair were captured in January earlier this year as they attempted to flee anti-Islamic State.
The Home Office would not comment on the leaked documents and reiterated its position on the detention facility.
A Home Office spokeman said: 'We continue to engage with the US Government on this issue, as we do on a range of national security issues and in the context of our joint determination to tackle international terrorism and combat violent extremism.
'The UK Government's position on Guantanamo Bay is that the detention facility should close.'
Home Secretary Sajid Javid said there are 'strong reasons for not requiring a death penalty assurance in this specific case'
Dear Attorney General
DETENTION OF ALEXANDA KOTEY AND SHAFEE EL-SHEIKH
I am writing to follow up on our meeting on May 30 in which we discussed the issue of detained foreign terrorist fighters, specifically Alexanda Kotey and Shafee El-Sheikh.
I would like to express from the outset my gratitude to the Department of Justice and the FBI for their assistance to date.
I would also like to thank you for your time. These are important issues and we are united in our commitment to bring people who commit these crimes to justice.
The UK's aim is for these individuals to face justice in the most appropriate jurisdiction which maximises our collective chances of a successful prosecution.
To this end the (operationally independent) Counter Terrorism Command of the Metropolitan Police (SO15) and Crown Prosecution Service (CPS), have been engaged in a dispassionate assessment of the evidence available and likelihood of prosecution in the UK.
In parallel, our investigators have also been working with the FBI to explore the likelihood of prosecution in the US or other jurisdictions.
We consider the two individuals, Alexanda Kotey and Shafee El- Sheikh, distinct from the broader strategic issue of detained foreign terrorist fighters for three reasons.
Firstly, there is intelligence implicating these two individuals in the kidnap and murder of a number of individuals, including three American and two British citizens.
Secondly, these individuals have a significantly higher profile than other detainees in Syria due to their crimes, and will be held up as an example of how we treat and deal with alleged Isis fighters.
Thirdly, we need to deliver justice for the victims' relatives who have been vocal in their demands that both detainees face the rest of their lives in prison, following a fair and transparent trial.
SO15 have engaged extensively on this case with the FBI to understand both the US and UK evidential cases, pursuing various lines of inquiry.
Their investigation into Kotey and El-Sheikh has been running for over four years, during which time they have engaged with 14 other countries and compiled over 600 witness statements.
The UK does not currently intend to request, nor actively encourage, the transfer of Kotey and El-Sheikh to the UK to support a future UK-based prosecution.
I do understand your frustration on this subject, and in order to improve the chances of prosecution in other cases in the future, we in the UK are introducing new legislation to improve the range of offences on the statute book going forward to deal with the scourge of foreign fighters.
Ensuring foreign fighters face justice raises a real challenge for all our jurisdictions, however in this instance we believe that a successful federal prosecution in the US is more likely to be possible because of differences in your statute book and the restrictions on challenges to the route by which defendants appear in US courts.
The US currently has additional charges for terrorism offences which are not available under UK criminal law, and those offences carry long sentences.
We are therefore committed to assisting the US with a federal prosecution of Alexanda Kotey and Shafee El-Sheikh, and after careful consideration I have decided to accede to your current request for Mutual Legal Assistance which is with the UK Central Authority.
All assistance and material will be provided on the condition that it may only be used for the purpose sought in that request, namely a federal criminal investigation or prosecution.
Furthermore, I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought.
I have instructed my officials to set out the terms of our assistance and to work with your officials to action the request.
As you are aware, it is the long held position of the UK to seek death penalty assurances, and our decision in this case does not reflect a change in our policy on assistance in US death penalty cases generally, nor the UK Government's stance on the global abolition of the death penalty.
I look forward to working with you further on this issue.
Yours sincerely,
The Rt Hon Sajid Javid MP
Why Beatles WON'T face justice in the UK
Sajid Javid admitted that the last two terorist ‘Beatles’ could have escaped justice in the UK.
The Home Secretary said he wanted the two jihadists to stand trial on terror and murder charges in America, making it more likely the pair would be convicted in a court of law.
But the potential difficulties of successfully prosecuting Alexanda Kotey and Shafee Elsheikh meant the UK was reluctant to repatriate them.
The extremists had their UK citizenship taken away by the Home Office before they were captured to stop them re-entering the country.
In his letter to US Attorney General Jeff Sessions, Mr Javid said: ‘In this instance we believe that a successful federal prosecution in the US is more likely to be possible because of the differences in your statute book and the restrictions on challenges to the route by which defendants appear in the US courts. The US currently has additional charges for terrorism not available under UK criminal law, and those offences carry long sentences.’
Ministers are keenly aware that there will be outrage if a murderous jihadist was released due to lack of evidence. Prosecutors must be satisfied that there is sufficient evidence for a realistic prospect of conviction – tricky when the crimes have taken place in a foreign war zone.
Confessions gathered by groups holding the IS fighters – the Syrian Democratic Forces (SDF) and the Free Syrian Army (FSA) – could prove inadmissible as they have no recognised legal systems.
The captors wore masks in front of their hostages, meaning they could not be identified. If they had been tortured by local forces, the case would be dropped and they would be set free on UK streets.
One diplomat told The Daily Telegraph: ‘Getting enough evidence to be confident of a conviction at home is difficult, so our preference is to leave them there. But the problem is the SDF does not have a recognised legal system.’
In answer to Lib Dem MP Sir Ed Davey, who pressed for a fuller explanation, Mr Wallace said: 'Because we are interested in seeking criminal justice in line with international law and where we feel that the assurance might get in the way of being able to do that... if he faced the choice of either having to see these people go free and wander round potentially his city, or indeed go to trial, then of course he may take a different view.'Mr Wallace was also forced to defend the decision to his own backbenchers - with Tory former attorney general Dominic Grieve telling MPs the decision represented a 'major departure from normal policy'.
He added: 'Those are the key questions and until they're answered I have to say to him this issue is going to continue to haunt the Government.'
He added: 'Simply to say if we were unable to prosecute them in this country we should simply let them free to roam around the United Kingdom because it would upset (Ms Abbott) not to share our evidence with the United States is simply bizarre and not justice to the victims.'
Mr Wallace said ministers have complied with the European Convention on Human Rights and due process.
But shadow attorney general Baroness Chakrabarti said: 'Sajid Javid appears to have secretly and unilaterally abandoned Britain's opposition to the death penalty. By doing so he is not just playing with the lives of these particular terrorists but those of other Britons - including potentially innocent ones - all over the world.
'Just as we should be persuading countries like the US and Iran to drop the death penalty, Sajid Javid appears to be encouraging this grave human rights abuse.'
Lord Carlile, a former independent reviewer of terrorism legislation and Lib Dem MP, said a 'decades old' policy was being ditched.
'It is a dramatic change of policy by a minister, secretly, without any discussion in parliament,' he said.
'It flies in the face of what has been said repeatedly and recently by the Home Office - including when Theresa May was home secretary - and very recently by the highly-respected security Minister Ben Wallace.
'Britain has always said that it will pass information and intelligence, in appropriate cases, provided there is no death penalty. That is a decades-old policy and it is not for the home secretary to change that policy.'
Execution could make the two men 'martyrs'
Mr Foley's mother, Diane, said she was opposed to the death penalty, warning it would make the two men 'martyrs in their twisted ideology'.
'I would like them held accountable by being sent to prison for the rest of their lives,' she told BBC Radio 4's Today programme.
UK lawyers preparing to challenge Javid's decision over Isis pair
Assisting US extradition without death penalty pledge is branded ‘unprincipled’
Lawyers are preparing to challenge the government’s decision to assist the US extradition of two former British Islamic State terrorists without demanding they do not face the death penalty.
No 10 has said Theresa May backed the decision by the home secretary, Sajid Javid, to waive the longstanding convention so that evidence could be released to prosecute the pair in the United States for multiple murders of hostages, including the Britons Alan Henning and David Haines.
The Howard League for Penal Reform said it was consulting with its lawyers on bringing a case against the government to challenge the decision.
Alexanda Kotey and El Shafee Elsheik, who have been stripped of their British citizenship, are being held by Kurdish forces in northern Syria and are set to be extradited to the US.
Prosecutors have said British evidence is needed to secure their conviction. Javid has offered the evidence without seeking the normal assurances about possible execution.
Frances Crook, the Howard League’s chief executive, said: “The Howard League was founded when public executions ended and has more than 150 years’ experience of campaigning against capital punishment. We are committed to upholding the rule of law and the total abolition of capital punishment.
“We have been advised that legal action is feasible. We are consulting with senior legal figures on the precise details and we will make an announcement shortly.”
Ben Emmerson QC, a former UN special rapporteur on human rights and counter-terrorism who sat as a judge on the international criminal tribunals for Rwanda and the former Yugoslavia, said the waiver was “largely an unprecedented situation”.
He called it “unprincipled, incompetent and almost certainly unlawful” for the decision to have been taken and said it could be challenged in the courts.
“Historically it has been the British government’s position in all cases to oppose the death penalty in all circumstances,” he told BBC Radio 4’s Today programme. “And that has translated to an absolute rule, which is legally enforceable, not to extradite an individual to a country where they are at serious risk of the death penalty without an assurance that the penalty will not be carried out.”
However, some legal sources have cast doubt on the effectiveness of a challenge, suggesting any judgment could be meaningless if the UK has already shared the vital evidence.
May’s spokeswoman said the prime minister was “aware of these plans and supports the way that this has been handled. The ultimate aim for all of us in our discussions with the US is to make sure that these men face the rest of their lives in prison. That is also what the victims’ families want.”
The decision taken by Javid and the former foreign secretary Boris Johnson was revealed in a letter leaked to the Telegraph, in which Javid told the US attorney general, Jeff Sessions, he would not seek a “death penalty assurance” before the men were extradited to the US to face a federal trial.
The security minister, Ben Wallace, confirmed on Monday that the men had been stripped of British citizenship.
Emmerson said it was “immaterial” that the men were no longer British citizens. “It is passing information to a foreign power where they know the consequences are going to be a fundamental human rights abuse of this kind,” he said.
The pair were members of a British terror cell known as “the Beatles”, believed to be responsible for the gruesome killings of more than 20 hostages including Britons and Americans.
Javid wrote: “All assistance and material will be provided on the condition that it may only be used for the purpose sought in that request, namely a federal criminal investigation or prosecution.
“Furthermore, I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought.”
Johnson warned in a briefing document circulated to the department and ministers that such a move could have an effect on Britain’s leverage to demand a death penalty exemption in future, but suggested the benefits of a US federal trial outweighed that risk.
The justice secretary, David Gauke, defended the decision on Tuesday. “We have to bear in mind the government is determined to ensure the two individuals are properly brought to justice and the decision was made on the details of their particular cases,” he said.
“I don’t think anybody wants to see those two individuals walk free because there’s insufficient evidence to bring a case against them.”
